Editorial: Third Tensing trial pointless without lesser charges

Ray Tensing reacts as Hamilton County Common Pleas Judge Leslie Ghiz tells the jury to continue deliberations Friday, June 23, 2017, after the jury said they are deadlocked.(Photo: The Enquirer/Cara Owsley)

About a week ago, this editorial board called for Hamilton County Prosecutor Joe Deters to seek a third trial of former University of Cincinnati Police Officer Ray Tensing, who unarguably shot and killed motorist Sam DuBose during a traffic stop. We emphasized, however, that if the prosecutor did move forward it should be with lesser charges and a change of venue.

It has since come to light that bringing lesser charges of reckless or negligent homicide against Tensing is no longer an option. Deters said just this week that his office had 270 days after Tensing's original indictment to bring forth previously uncharged crimes. That time, he said, passed long ago.

Given that lesser, and frankly more reasonable, charges are no longer on the table, we cannot in good conscience advocate going forward with another trial. We stand by our initial position that a "draw" is an unacceptable outcome and that the community and the DuBose and Tensing families deserve closure. We continue to believe that leaving this case unresolved could be more damaging and dangerous to our community in the end.

But we cannot justify calling for another expensive trial with the same charges of murder and voluntary manslaughter when we don't truly believe the outcome would be any different than the previous two mistrials, regardless of the venue. The jury vote counts were deadlocked, leaning toward acquittal. Juries across the nation have been reluctant to convict law enforcement officers of murder, and they give them a tremendous benefit of the doubt in close-call situations. Lesser charges might have offered a jury middle ground to render a verdict.

Not only has time expired on that option, but prosecutors struck out when they asked Judge Leslie Ghiz to allow the jury to consider the lesser charge of reckless homicide during the retrial. It's doubtful anything would change in a third trial.

Given these facts, it would be unproductive, and perhaps even cruel, to put the DuBose and Tensing families as well as the community through another grueling trial, only to end in another hung jury.

Dropping the case is the worst of all results because it denies everyone something. It denies Tensing an opportunity to clear his name the way only an acquittal can. It deprives the DuBose family of closure and the accountability for the death of a loved one. And it robs the community of justice, whatever a jury might ultimately have determined that to be.